Court backs body corporate’s right to sell property over R50k unpaid levies

The Body Corporate of Bondi in Roodepoort has secured a landmark ruling allowing it to proceed with execution against a property for arrear levies totaling R50 974,31.

The action follows a ruling by the Gauteng High Court, Johannesburg which dismissed an appeal by one of the co-owners regarding an order for the execution against the property, which had been purchased for R609 000,00. When the Roodepoort Magistrates Court granted the initial order on 1 September 2022, the outstanding mortgage bond in respect of the property was R631 890,31; the estimated market value of the property was R1 400 000,00 and the amount owing to the municipality sitting at R77 088,06.

The co-owners had previously failed to respond to the initial summons, leading to a default judgment against them. With both unable to fulfil their financial obligations, the body corporate sought the right to execute the sale. The applicant unsuccessfully attempted to propose a payment plan of R2 000 a month but this was rejected, given the substantial debt that had escalated to over R222 154,24 due to continued non-payment of levies. He claimed that his rights under Section 26 of the Constitution, which guarantees access to adequate housing, were being infringed.

However, the court rebutted this claim, noting that all alternative means had been considered. It concluded that the imminent sale of the property would not precipitate his eviction without due consideration of all surrounding circumstances and mitigating factors, including a substantial equity position beneficial to the appellant post-sale.

During the proceedings, Judge BC Wanless examined the facts laid out in the magistrate's court and found ample evidence supporting the original decision. Noting that the immovable property was the primary residence of one of the owners, the judges evaluated whether alternatives had been explored for satisfying the judgment debt before resorting to a sale.

The evidence indicated that both co-owners had consistently failed to make payments towards the judgment debt, and efforts to collect through the attachment of movable property had yielded no results, prompting the desperate need for execution against the property itself. The judgment, however, did include a suspension period of three months allowing them an opportunity to settle their debts or sell the property voluntarily.

Judge Wanless emphasised that execution against a primary residence should be a last resort but can be justified when all alternate resolutions have been exhausted without success.

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